Nichols v. Wal-Mart Stores Inc

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60801 Summary Calendar

JOHN R. NICHOLS, Plaintiff-Appellant,

versus

WAL-MART STORES, INC., Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Mississippi (1:95-CV-372)

April 15, 1997 Before POLITZ, Chief Judge, JONES and SMITH, Circuit Judges.

PER CURIAM:*

The sole issue presented on this appeal is whether the defendant’s motion for

summary judgment was filed timely. Concluding that it was, we affirm.

John R. Nichols filed suit against Wal-Mart Stores, Inc. for personal injuries

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. allegedly sustained as the result of a slip and fall on an oily substance in the

automotive department. The matter was referred by consent of the parties for trial

before a magistrate judge.1 The magistrate judge entered a case management order

which, inter alia, required that “all motions other than in limine motions shall be

filed by September 15, 1996.”

September 15, 1996 was a Sunday. On Friday, September 13, 1996, counsel

mailed defendant’s motion for summary judgment from Tupelo, Mississippi to the

clerk’s office in Aberdeen, a distance of 33 miles. At 8:00 a.m. on Monday,

September 16, 1996 clerk’s office personnel marked the motion as filed. Nichols

maintains that the trial court erred by considering the motion because it was filed

fatally untimely. Counsel unsuccessfully advanced untimeliness in the trial court.

The trial court summarily rejected Nichols’ untimeliness challenge. In so

doing, the court either concluded that the filing was within the time limits of its

scheduling order or it implicitly extended that order by a few hours. Either way,

we perceive no error.

The judgment appealed is AFFIRMED.

1 28 U.S.C. § 636(c). 2